The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-04-11
OPIUM LAW.
Its COnstItutiOnaIity QuestiOnod by
Mr.. Dare.


the Supreme Court in banco last Saturday |
present the Chief Justice and Associate
Justices NcCuIly, Preston and Bickerton. |
Associate Justice Fernandez was absent on
account of sickness. Mr.. John T. Dare
appeared for the appellant; the Attorney
General, with whom were associated Mr..
Paul Neumann and Mr.. F. NJ. Hatch, rep
resented the Crown. This appeal, 1t will
be remembered, created considerable in
terest when first called on Thursday last,
from the fact that an attempt had been
made to dismiss Mr.. Dare from the case
He was restored, however, by the full
Bench, after hearing evidence, and he had
sole charge of it for the appellant last Sat
urday. his former associate, Mr.. Magoon,
having withdrawn.
This was an appeal from decision OF
the Police Justice of Honolulu. rendered
January 20, 1887. The appellant, Young
Tang, was convicted on that date for a vio-
Iation of section 3 of the Opium Law, 1895,
fined 81 900 and sentenced to two years
imprisonment under section of the Act.
Mr. Dare opened his argument by read
ing section of the Opium law, as follows:
Every person not having a license who
shall have possession of any opium con-
trary to the provisions of section 3 of this
Act, or who shall sell or furnish any opium
or preparation of opium to any person or
persons contrary to law shall upon CON
victiOn thereof, be fined in sum of not
less than 81 900 nor more than $1,000, and
be imprisoned for any term not more than
ten years nor less than two years" This
was the only section III the law which
made alluSiOn to the possession of opium
as an offense, and which alone provided a
penalty for it; but it was made conditional
upon violation of section 8, which is as
follows: 1.-The person receiving such Ii
cense shall keep in a book of record, to be
furnished him by the Minister of the In
terror, record of the names of all persons
to whom such iicensee has sold any opium,
with the date of such sale and the quantity
sold, and the name of the physician issuing
the certificate on which sale is made, and
the date of such certificate. Such record
ing book shall be kept in the English
and Hawaiian languages, and shall be
open to inspection at any time to any
member of the Police force and the Min
lister of the Interior. The person holding
the license shall give to each person pur-
chasing opium receipt stating the date of
such purchase and the quantity of opium
sold" Mr.. Dare argued that section did
not apply to the case of his client. 1t was
wholly directory of things to be done by
the licensee. 1t specified what he, and he
alone, should do upon receiving his record
book from the Minister of the Interior.
The possession of opium was not viola
ton of this section, and therefore could
not be a penal Offense contemplated under
section 4. A consumer of opium could not
violate any of the provisions of section 8,
and therefore could not be punished under
section 4 for unlawful possession. Mr..
Dare claimed the discharge of his client as
a matter of right. He was now unlawfully
restrained of his liberty. Mr.. Dare next
proceeded to attack the law itself as mop
erative and void because of its antiquities
and incongruities, it's inconsistencies and
contradictions. Reading one section with
another the law nullified itself, and should
therefore be ruled imperative by the Court
and all acts done under or by virtue of it
declared void. 1t was hardly necessary for
him to comment upon what would be left
of the law if the imperative parts were
stricken out because he did not think there
would be enough of it remaining upon
which to base any comments. The law
was wholly bad and detective Upon
broad constitutional grounds Mr.. Dare
argued that the opium law should be pro-
nounced invalid. He claimed that it is re-
pugnant to Articles 7, 9, u, IA, AZ and II
of the Constitution, as well as being in di-
rect violation of Article II, which reads as
follows: ITO avoid improper influences
which may result from intermixing in one
and the same Act such things as have no
proper relation to each other every law
shall embrace but one object, and that
shall be expressed in its title" The title
of this law is "An Act to regulate the
importation of opium in this Kingdom
whilst it's sections have the words and
preparation thereof" These last-recited
words embrace all medicinal preparations
into the composition of which opium
enters, and which include large portion
of the materia medica Counsel read list |
of sometwenty-eigh different preparations
of opium which should be found in every |
we'll stocked pharmacy. If the law were |
not imperative by reason of its contradic-
tions, it should, he submitted, be declared |
void for the reason that the title of the Act
and its provisions do not comply with Ar
-icle II of the Constitution. But this was
not all. Section of the Act conferred
legislative powers upon an executive Off
,er, and created by section a new hcens-
ng power, which it conferred upon the Mar
hal. After citing numerous authorities
lpon constitutional law and the construc-
ion of statutes in support of his position
hr. Dare submitted the case for his client.
Mr.. Neumann, of counsel for the Crown,
ollowed. He contended that the objection
o the law founded upon the grounds of its
ambiguity and uncertainty should not be
egarded as fatal. There was enough in the
Act to show clearly what the Legislature
Intended by the law, which was to raise
'evenue by licensing the sale of opium. To
accomplish that purpose, and to protect
he revenue, certain provisions had been
enacted, under one of which Young Tang,
Inc appellant, had been convicted and SEN
enced i'll the Court below. He admitted
hat he had never before been called upon